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2015 DIGILAW 136 (HP)

Hem Raj v. Kulwant Singh

2015-03-02

RAJIV SHARMA

body2015
JUDGMENT : Justice Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 27.10.2014 rendered by the District Judge, Hamirpur in Civil Appeal No. 120 of 2012. 2. “Key facts” necessary for the adjudication of this appeal are that respondent-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) filed a suit for possession of land comprising Khata No.64, Khatauni No. 67, Khasra No.338 measuring 1 karnal 7 marlas, as per Jamabandi for the year 1998-99 situated in village Kapoti, Mauza Mehlta, Tehsil and District Hamirpur (hereinafter referred to as the “suit land”) with consequential relief of permanent prohibitory injunction against the appellant-defendant (hereinafter referred to as the “defendant” for convenience sake). According to the plaintiff, he is owner in possession of the suit land and defendant is stranger qua the same. He has no right, title or interest over the suit land. Defendant has started construction of his house in the month of June, 2001 on his land, which adjoins the suit land. He has also encroached upon a portion of the suit land. Plaintiff approached the Gram Panchayat and in the proceedings before the Gram Panchayat, defendant asserted that the portion dug by him does not form part of the suit land. A compromise was entered into between the parties on 28.6.2011. Plaintiff has got his land demarcated on 29.12.2002 through revenue agency. It was found that defendant has encroached upon the suit as per tatima. Thereafter, plaintiff requested the defendant to vacate the encroached land. However, he refused to do so. 3. Suit was contested by the defendant. Ownership and possession of the plaintiff over the suit land was denied for want of knowledge. According to the defendant, he obtained demarcation in the year 1997 and the boundary between the parties was fixed by the revenue authorities. 4. No replication was filed by the plaintiff. Issues were framed by the Civil Judge (Junior Division) on 2.8.2005. Learned Civil Judge (Junior Division) decreed the suit of the plaintiff on 12.4.2012. Defendant preferred an appeal before the District Judge, Hamirpur. He dismissed the same on 27.10.2014. Hence, the present appeal. 5. Mr. G.D. Verma, learned senior Advocate, on the basis of the substantial questions of law framed, has vehemently argued that there is misreading and misappreciation of evidence by both the courts below. He then contended that Ex.A-1 and Ex.A-2 could not be ignored. He dismissed the same on 27.10.2014. Hence, the present appeal. 5. Mr. G.D. Verma, learned senior Advocate, on the basis of the substantial questions of law framed, has vehemently argued that there is misreading and misappreciation of evidence by both the courts below. He then contended that Ex.A-1 and Ex.A-2 could not be ignored. He finally contended that the Local Commissioner’s report was contrary to the revenue record. 6. I have heard the learned counsel for the appellant and have gone through the judgments passed by both the courts below carefully. 7. PW-1 Kulwant Singh has deposed that he was owner in possession of the suit land. Defendant was the owner of the adjoining land. Defendant has raised construction of his house in the month of June, 2001. He has encroached upon a portion of the suit land to the extent of 2 marlas. PW-1 Kulwant Singh and PW-2 Desh Raj have deposed about the compromise entered between the parties on 28.6.2001. 8. PW-5 Bidhi Chand has carried out demarcation of the suit land. He has proved demarcation report Ex.PW-5/A and tatima Ex.PW-5/B. 9. Defendant Hem Raj has appeared as DW-1. He has testified that he is owner of adjoining land comprising Khasra No.337. Plaintiff has come into possession over the suit land through his maternal uncle Sh. Jagat Ram. He got the demarcation of his land in the year 1995 vide report Ex.DW-1/A. He has raised construction in the year 2000. 10. Defendant has also examined DW-2 Amar Singh. He has supported the statement of DW-1 Hem Raj. According to him, construction has been raised by the defendant over the foundations of his old house in the year 2000. 11. Since both the plaintiff and defendant were relying upon demarcations carried out before the institution of the suit, during the course of trial, an application under order 26 rule 9 of the Code of Civil Procedure was moved by the plaintiff. The Local Commissioner was appointed. He submitted report Ex.OW-1/B. In OW-1/B, defendant was found in possession over the suit land to the extent of three marlas. Objections were filed to the report Ex.OW-1/B. According to the defendant, demarcation was not carried out as per the rules framed by the High Court and Financial Commissioner of Himachal Pradesh. 12. The Local Commissioner was appointed. He submitted report Ex.OW-1/B. In OW-1/B, defendant was found in possession over the suit land to the extent of three marlas. Objections were filed to the report Ex.OW-1/B. According to the defendant, demarcation was not carried out as per the rules framed by the High Court and Financial Commissioner of Himachal Pradesh. 12. OW-1 Bakhtawar Singh has proved on record copy of report Ex.OW-1/B, statements of parties Ex.OW-1/C and statements of witnesses Ex.OW-1/D. Tatima has been proved as OW-1/A. The Local Commissioner was cross-examined. Both the parties were on the spot at the time when demarcation was carried out. Fixed points were ascertained. Triangle ABC was prepared. Defendant has made statement before the Local Commissioner Ex.OW-1/D. According to the Local Commissioner, defendant was not satisfied with the report. However, he has failed to prove how the demarcation report was in contravention to the instructions issued. Report Ex.OW-1/B is in conformity with law. The process of demarcation must come to an end to resolve the matter finally between the parties. 13. Mr. G.D. Verma has strongly relied upon Ex.A-1 and A-2, order of correction of revenue entries and mutation, respectively. These entries were made before the appointment of Local Commissioner on 8.10.2011. 14. Both the courts below correctly appreciated the oral as well as documentary evidence led by the parties. The report Ex.OW-1/B is inconsonance with law. Tatima Ex.OW- 1/E has also been prepared after going through the instructions. There is no need to interfere with the well reasoned judgments and decrees passed by both the courts below. 15. No other point was argued. 16. In view of the analysis and discussion made hereinabove, no substantial question of law much less to say substantial question of law is involved in the present Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.